KENTUCKY OPEN GOVERNMENT COALITION'S LETTER OF OPPOSITION TO HB 509 

(To be heard in the Senate State and Local Government Committee on Wednesday, March 27, at 11:30 a.m.)

Senator Robby Mills, Chairman
Senate State and Local Government Committee 
Capitol Annex
Room 284
Frankfort, KY 40601

Re: Kentucky Open Government Coalition's Letter of Opposition to House Bill 509

Dear Chairman Mills:

The Kentucky Open Government Coalition vigorously opposes House Bill 509 with House State Government Committee Substitute, as it passed out of the House of Representatives and as it is presented to the Senate State and Local Government Committee with Senate Committee Substitute today.

Based on House Bill 509 as introduced, as passed with House committee sub, and as presented with Senate committee sub, we concur with the right-leaning editorial board of The Bowling Green Daily News in it's 2022 assessment of yet another legislative attack on open government:

"A preponderance of the evidence suggests many Republicans have become so intolerant of scrutiny and accountability that they are willing to legislate against transparency. It's pretty obvious what they’re really trying to achieve: a codified way to evade watchdogs, both in the press and the general public.

"This stuff has grown far beyond tiresome. In some cases, it is starkly un-American."

https://www.bgdailynews.com/opinion/our_opinion/state-gop-continues-tro…

Our frustrations extend beyond the Republican Majority's false claim that House Bill 509 resolves a purported tension between pubic accountability and electronic personal privacy to our Governor's underreported public assertion -- born of self-delusion or cynicism -- that HB 509 "will provide more records, not less."

https://www.wpsdlocal6.com/news/gov-beshear-speaks-on-house-bill-to-cha…

https://kyopengov.org/blog/serious-doubts-about-hb-509-remain-despite-g…

Supporters of House Bill 509 -- both legislative and executive -- have broken faith with the voters who elected them. At last they are stripped of all pretense in their joint assault on transparency.

This assault takes the form of:

• abandoning decades of legal interpretation recognizing that it is the nature, purpose, and content of the record, and not the place where it is stored, that determines whether it is subject to the open records law;

• promoting the evil it purports to eliminate by statutorily restricting public agency production of records relating to public business that are exchanged on private devices and accounts, thus "creating a codified way to evade watchdogs, both in the press and the general public;"

• redefining "public agency" -- if the Senate committee substitute is adopted -- in a manner that excludes entities previously subject to the open records under the expansive definition of that term and invites litigation that aggrieved requesters cannot afford, courts will not welcome, and "government entities" that fall in the gray zone will happily exploit.

With each new "revision," the  Kentucky Open Government Coalition becomes increasingly convinced that the alliance between the legislative Majority and the chief executive is intended to "erect  barriers between the public and information it has a right to know." It targets a nonexistent "tension," narrows the scope of publicly accessible records, and opens the proverbial floodgates to litigation over whether a "governmental entity" from which public records are sought is a public agency under that newly redefined term. We dare not ask, "What is next?"

Borrowing, again, from The Bowling Green Daily Times 2022 editorial:

"Politicians who lack the maturity or the backbone to deal with criticism or opposing viewpoints should leave public office altogether, instead of trying to rig the game in order to make their jobs more comfortable."

The antidote to feckless public officials and employees who shun the disinfecting rays of Kentucky's nearly fifty year old sunshine law can be found in the General Assembly's own words:

"[T]he basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23058

The Kentucky Open Government Coalition urges the members of the Senate State and Local Government Committee to recall this decades' old statement of legislative policy and to vote "no" on House Bill 509. Those who vote "no" can return to the voters who elected them confident in the knowledge that they served -- rather than betrayed -- the public interest.

Respectfully,

Jennifer Brown
Amye Bensenhaver
Co-directors, Kentucky Open Government Coalition

C: Governor Andy Beshear

Senator Michael J. Nemes, Vice Chair

Senator Cassie Chambers Armstrong

Senator Greg Elkins

Senator Denise Harper Angel

Senator Amanda Mays Bledsoe

Senator Christian McDaniel

Senator Brandon J. Storm

Senator Damon Thayer

Senator Phillip Wheeler

Senator Gex Williams